De Imperio Summarum Potestatum Circa Sacra

2.1.1 Imperium

Of the numerous ambiguities in Grotius's juridical and political thought, the definition of imperium, which is the conceptual starting point of De imperio, is a striking counterexample. In any given polity, Grotius claims, there must be some person or assembly to hold the highest power of ruling and commanding. Furthermore, this power, to be the highest (above whom only God's authority), must necessarily extend over any matter of public relevance, including the reli­gious sphere (care for which was, as expressly stated by the Dutch Confession, a matter of predominant political relevance)?⁹

However, as clear Grotius's definition of sovereignty, as problematic would prove its defence against the iure divino-standpoint of the Calvinist clergy - as well as against all those who were not inclined to accept a political theory that did not allow for strong constitutional guarantees of ecclesiastical freedom. Thus, it was with evident scrutiny that Grotius developed his ecclesio-polit- ical argument on the different conceptual levels involved - referring to the constitutive principle of imperium, its legitimate extent, its subdivisions, and lastly and most delicately, its relation to natural and divine law.

The constitutive principle, and distinctive feature, of imperium is defined through its moral effect, which is to produce the moral obligation to accept coercive power.^{[620] [621] [622] [623] [624] Whereas (legitimate) rule has, accordingly, an immediate moral impact on its subjects' consciences^1 its juridical effect (or its legitimate extent) is, as a matter of principle, restricted to the realm of external actions (that is, to those that are visible and hence of public relevance).22}

There are, according to Grotius, two (and only two) kinds of imperia among humans, the father's and the king's, the first arising from nature, the second from institution. To these distinctions pertains (also, as we will see, in the generic sense) the distinction between declarative and imperial rule. The first applies to the authority of social instances such as physicians, tutors, teach­ers, or priests, whose authority as well might give rise to certain, but rather metaphorically so-called kinds of obligation. For in any of these cases, obliga­tion arises not from a genuine, self-contained principle of authority, but only from the consistency of some given precepts with divine or natural law (right reason), and under the limiting condition of non-contradiction with civil law. From which it follows by implication that no kind of declarative rule can ever interfere with the external freedom of action, the latter being an exclusive subject-matter of civil law?³ For the legitimacy of imperium, by contrast, it is solely required that a ruler's actions are not against natural and divine law?⁴

The preceding set of definitions is presupposed in one last, and concluding, distinction, which is meant to clarify the juridical relationship between church and state (and which will, accordingly, be of special concern in Grotius's account of the origins, and interrelationship, of imperium and priesthood according to divine law and Sacred history).

By contrast, the functio sacra is considered as being merely subordinate to political imperium in the sense that to it applies the second quality but not the first. In difference to all other political offices, those of bishops and priests do not derive from imperium in the juridical-political sense, which is the same as to deny any church any right to any share in civil author­ity.^[625] And yet the subordination of religious offices under (the concept of) imperium implies something more than just a claim of supremacy, for, as we will see in the following, this claim of hierarchy will be developed on the basis of a kind of transformational narrative, that is, a narrative that avoids direct political confrontation, but rather aims at a reconsideration of the relationship between the Sacred and the Secular in the formation history of the modern, Christian-Protestant state. Subordination thus also implies that for Grotius, the (Protestant) church remains an integral, necessary part of the state.

All these political-juridical differentiations are, subsequently, explained and justified in terms of (divine) natural law, ius gentium, and, lastly, with broad support from biblical and early church history.

2.1.2 Natural and Divine Law

Natural law, to begin with, has a double sense in De imperio. In the first sense, the concept of natural law is set identical with certain moral and religious duties that are, immutably, prescribed by divine law,^{[626] [627] [628] [629] such as, according to the main examples given, to worship God, to venerate one's parents and not to harm the innocent?7 Duties of this kind are obligatory to any individual under any circumstances; therefore, they are also to be respected (that is, their exer­cise is to be allowed) by the civil sovereign.}

In a second sense?⁸ natural law relates to the juridical and political consti­tution of human society; this part of natural law is, accordingly, subject to his­torical change. Natural law in this second sense - ius naturale secundo genere - has a dual reference, firstly to a natural condition of man (both in the historical and moral sense), secondly to the liberty of men to restructure their social life by introducing new institutions which, if not against natural and divine law, will in turn give rise to different subjects and new kinds of obligation. Whereas, for example, common property was assumed to have been natural to men in ancient times, it was no less natural to them to introduce private property at a certain point in history. And while paternal dominion had been natural in ancient times, it was later natural to be governed by kings.

In his consideration of divine positive law, Grotius displays a different scheme, because its validity does not depend on certain intrinsic moral quali­ties of actions, but follows from special divine commandments?⁹ In this case, the question cannot be about absolute or relative obligation, for that would be blasphemous, but the question can be about the addressees of divine law. Biblical history now tells us, Grotius says, about three decisive acts (and types) of divine lawgiving. The first laws were given to individuals - notably, to Abraham, Isaac, Jacob, Moses and some prophets. Secondly, laws were given to an entire people, namely, to the Hebrews via Moses. In the third place, there are universal divine laws. Some of these were only to last for a certain time, as the rules of worship received by Adam and Noah. Others, however, were to last for ever, namely, the Christian sacraments, as far as already contained in the Gospel, â€?such as gathering together, baptism, the Lord's supper and the like'.^{[630] [631] [632] Only the articles and sacraments of the Christian faith are, therefore, strictly obligatory for Christian sovereigns, who nevertheless enjoy the right to prescribe to men â€?the circumstances - place, time and manner - under which actions commanded by God are to be carried out, so that these are done decently and in ordef?1}

2.2 SacredHistory: Divine Positive Law, �NaturalImperium’, and the

Priesthood of the Patriarchs

In re-enacting this conceptual framework through the interpretation of Sacred history, Grotius pursued a dual strategy in De imperio. The first was to provide biblical evidence for the concept of the summa potestas as the highest author­ity in worldly and religious matters. In this regard, Grotius followed the classi­cal Erastian model. However, differently from his own former discussion of the Hebrew Republic - which had only started from the phase of state-building after the return from the Egyptian captivity3² - he now presented an almost integral survey of Jewish-Christian history up to late Antiquity. This history started from the pre-state period of the patriarchs, went on through the time of Moses, the judges and the kings until the time of Roman domination and the final destruction of the second temple, where it concluded with a discussion of the early Christian synods.

In the course of this examination, Grotius invoked the loci classici of Erastianism: He insisted that Moses, and not Aaron, held the ultimate religious authority. He was eager to point out that even the transfer of priestly rights to the Aaronites and Levites did not mean that these priests had enjoyed the exclusive right to interpret divine law. He insisted on the civil and not eccle­siastical character of the Sanhedrin. And he devoted several chapters to the demonstration that also the early Christian synods did not convene by their own right, but only because the emperors allowed them to do so.

However, all these arguments were framed by an even more general, also subtler, narrative which opened up the interpretation of Sacred history for a broader, natural law- and ius gentium-based discussion of the relation between imperium and priesthood. This narrative was about how the relation between imperium and priesthood was to be understood before and after God's positive reign over Israel, and it did not only give account of the natural sources of imperium and priesthood, but also contained all requisites to tell the story of their historical differentiation.^{[633] [634] Moreover, this narrative was inserted at a cen­tral place in De imperio, notably, into that very (second) chapter that basically dealt with the conceptual relation between imperium and the functio sacra.}

After having introduced the distinction between imperium and the functio sacra, Grotius went on with claiming that, notwithstanding what might have been ordained by divine positive law at certain points in time,3⁴ there was no reason so assume that natural law prohibited imperium and theJunctio sacra to be hold by one and the same person, to which he added a concise commentary on the biblical history of worldly and ecclesiastical authority which, as it is of central importance to his argument, shall be quoted at length.

This is also demonstrated by the agreement of the nations. For every­one affirms that in the earliest history of the world, when mankind was governed by domestic rather than civil authority, the heads of the fam­ily held something like kingship and played the part of priests as well. On that basis Noe sacrifices to God when the Earth is liberated from the Flood. God says of Abraham [Gen. 18:16] that he shall show his children and his household the way of pious living. Thus we read of sacrifices by Job and other patriarchs. At the death of the father both the first position in the household and the priesthood were transferred to the first-born, and this remained the custom in Jacob's posterity (because they did not yet have established a state), until the Levites [...] were substituted for the first-born. [.] But in the same period a kind of state had come into existence in the Canaanite region and there Melchizedek held the king­ship and the priesthood at the same time. And so did Moses until the consecration of Aaron; therefore Holy Scripture calls him both �king' and �priest'. [.] It could be asked whether those fathers and kings, while the true worship of God lasted (as it probably did for some centuries after the Flood in many regions), received the priesthood in a special quality or just laid claim to it by virtue of their right as a father or a king. The opin­ion of learned men is that some persons may have enjoyed the authority of a divine oracle as well, but that this cannot be proved for all of them, nor is there any reason to think so. For, setting aside positive law, nothing of this kind is required to make someone a priest. On the contrary, since the people of those times, everywhere in the whole world, were obliged to honour God as far as they knew him [...], they were obliged to be all priests or to charge some men out of their midst with the priesthood. The office of the father is to assign to every member of his household his duties, including the priesthood (for natural law on its own does not exempt that). But nature does not withhold him to assign to himself a function which he can assign to someone else, as long as he is fit for it. What we say about the father applies also to the king, the more so since it is agreed that in this primaeval condition the mass of free men had the right to choose their own priest. This right of free men is transferred to the supreme power [.]; and these elections consist in commanding and forbidding, because a certain man is commanded to perform the actions of a priest while this is forbidden to others. Now commanding and forbid­ding are acts of authority; only he who has all authority is rightly named the supreme power.^[635]

Priesthood is envisaged, in this account of its pre-state appearance, in a three­fold perspective, whose different aspects cover the entire spectrum of natu­ral and divine law distinguished above, and whose arrangement gives a good impression of how Grotius wanted, in this particular context, the interaction of these different kinds of law to be understood.

Firstly, priesthood, as an office, is derived from the religio naturalis that pre­scribes to any individual the worship of God - which duty Grotius, however, carefUlly provided with the limiting condition of actual knowledge of God (�quatenus eum norant'), thus leaving open its connectivity to the Calvinist doctrine of Grace.^{[636] [637] [638] [639]}

Secondly, and likewise central to the argument, authority over the exercise of the priestly office - ius circa sacra - is derived from the original, natural law­based authority of the father over his family; from that same natural imperium that would in later epochs be transferred to the civil sovereign, and of which the first and genuine expression was the father's authority to â€?assign to every member of his household his duties'. As much as Grotius's account of paternal imperium drew on the Roman concept of paternal dominium, which had decid­edly been re-introduced in early modern political theory foremost through Jean Bodin's Republique, it is likewise to be said that Grotius, much more than had been Bodin, was critical of the inhumanity of the father's absolute power over his family,3⁷ and that he included in his own interpretation of paternal rights a far broader range of antique sources,3⁸ among which, in this context in particular, the biblical tradition, which allowed him to draw a close connection between paternal authority and religious tutorship (which, again, would serve as a basis for associating priesthood with the regimen declarativum (and not directivum) both in the historical sense and according to (divine) natural law):

There is only one ordinary, permanent and primitive form of power which is placed below the supreme power without being derived from it, that of the head of a household; the power of the tutor and of the guard­ian have their origin in that.3≡

And thirdly, Grotius’s express reference to the positive laws promulgated, by divine revelation, to Abraham, Isaak, Jacob and Moses was obviously meant to provide additional biblical support to his argument - not least insofar as Moses (who did not belong to Abraham’s posterity) embodied the transition from pater­nal imperium to (institutional) kingship.

However, why was the account of patriarchal/paternal priesthood so impor­tant for Grotius at all? Presumably because it provided an ideal model, and at once an original pattern, for Grotius’s definition of the functio sacra as subordi­nate to imperium without immediately �emanating’ from it.^{[640] [641] Grotius’s account of the pre-Mosaic priesthood was evidently meant to provide biblical-historical evidence for his �functional’ account of the relation between imperial power and priestly authority: The execution of the fUnctio sacra had, in its origin, been sub­ject to the father’s authority not in the sense that it had been part of his ruling power as such (ex terminis), not in the sense that the functio sacra was included in the paternal prototype of ruling power. Thefunctio sacra had, by contrast, been subject to paternal power (only) insofar as it had been in the father’s competence to distribute certain duties among the members of his family. It had, accordingly, been included in the father’s (natural) right to decide whom to transfer an office that was by its very nature not a right, but a duty - and which, as such, could neither be immediately part of ruling power, nor be derived from the concept of imperium in the way of other (worldly) political functions.}

To incorporate priesthood within the concept of imperium (as subordinate to political authority), whereas distinguishing it from those other functiones imperii which, as emanationes imperii, were to be considered as participating in ruling power, was, evidently, among the most delicate points of Grotius’s argument^¹

At least, Grotius considered it necessary to give supplementary conceptual account of this distinction in the fourth chapter of De imperio (which dealt with objections against the civil ruler's ius circa sacra), through the above­mentioned distinction between constitutive and declarative rule, which was presumably intended to keep the balance between the necessity of defending a strong, politically based principle of religious supremacy as an important issue of national unity, and the need of a compromising formula, that is, which granted the Calvinist church an independent principle of spiritual authority while at the same time strictly subordinating all ecclesiastical polity to politi­cal authority.^{[642] [643]}

For the sake of this argument, Grotius seems not to have found it sufficient to merely adjust his concept of sovereignty, which was given a clearly more absolutist shape in De imperio than in his earlier writings^³ He also seems not to have found it sufficient to rely on an according interpretation of the Hebrew theocracy and of Hebrew civil law. After all, it had been by God's own positive law that the Aaronites (Ex. 28:1, 29:9), and later the Levites (Dtn. 18:1­8; Num. 1:49-50), had been bestowed with priestly functions, which made Grotius's claims about ius circa sacra rather difficult to be pursued throughout the entire biblical history.

This custom of combining earthly power with the priesthood was current in the whole world for about two thousand five hundred years, in many places for a longer time. Elsewhere it was abolished by the debauchery, negligence or continuous warfare of kings, but in God's own people by positive divine law, viz. that law which bestowed the priesthood not on just anyone from among the people but only on the house of Aaron. When that law came into effect, what had been praiseworthy before now became a crime. For the king who came from a different house was

strictly forbidden to appropriate the priesthood, because of God's clear prohibition.^{[644] [645]}

As additional counterevidence to Grotius's conceptualisation of the origins, and original juridical status, of priesthood, Old Testament political history had posed numerous further hermeneutic problems - such as, for example, how to explain why the Hebrew Republic was addressed, in the Old Testament, as a â€?priestly kingdom', why Moses was called â€?both king and priest', or to demon­strate the merely civil character of the Sanhedrin - which would still be one of the most fiercely discussed points in the English debate of the 1640s.4⁵ One clas­sical Erastian strategy had been to infer the civil character of these institutions from their factual output, preferably by pointing to the several cases in which either the Hebrew kings or the Sanhedrin had taken the liberty to give dispen­sation to certain persons, or in certain circumstances, from the observance of ceremonial laws. However, it could still be contested that these acts had been a matter of civil law. Or, as another common objection, such acts could rather be considered as proving the apostasy of these kings - an argument that had likewise been brought forward by de Beze, Bellarmin and Suarez. Obviously, de facto arguments could neither sufficiently prove that a certain institution had been civil and not religious, nor could they give account of the general legitimacy of the civil sovereign's ius circa sacra. To overcome this argumen­tative deadlock might reasonably be assumed to have been among the initial motives of Grotius's decision to go one decisive step beyond the interpretation of God's positive law, and to trace back the relationship between worldly and priestly authority to their common origins in the authority of the patriarchs, resp. patresfamilias.

Not the entire argument was the invention of Grotius, who could rely on a respective discussion of patriarchal priesthood in Thomas Bilson's De per­petua ecclesia Christi gubernatione (1611),^{[646] [647] but also on passages in Erastus, and even on an account given by Suarez of the religio naturalis of the patri­archs?7 However, Grotius's use of these sources was doubtlessly original. For, in difference to his sources, Grotius would notjust associate the pre-state priesthood of the patriarchs with natural religion, or, as Bilson would do, with the 'natural' (pre-state) condition of the church. While certainly drawing on his predecessors' interpretations, Grotius would, foremost, associate the reli­gion of the patriarchs with the natural 'imperium' of the paterfamilias, which made his interpretation of patriarchal priesthood become a central point of coincidence between conceptual, biblical-historical and extra-biblical histor­ical evidence - and one that was even qualified to rule out the paradigmatic role of the Hebrew theocracy as the main reference in the discourse of ius circa sacra.}

In sum, Grotius's account of patriarchal priesthood in De imperio was to make the civil sovereign's ius circa sacra an affair, no longer predominantly of interpreting God's positive laws, but rather of natural law and ius gentium. By doing so, Grotius offered an interpretation of Sacred history that would lastly - namely, in De iure belli - result in making the Hebrew theocracy appear as a rather subordinate - even extraordinary - episode in an overall narrative of the historical interaction between natural law and universal divine positive law.

Moreover, De imperio was also pioneering in the elaboration of that very dis­tinction between ius naturale (divinum) and ius divinum positivum for which De iure belli ac pacis was to become famous, and which - being a conceptual and not just historical distinction, that is, which did not just apply to different modes of promulgation, but also, and even foremost, to distinct modes of obli­gation - would prove extremely important in the transition from early modern to enlightened natural law, as well as for the transition from humanist bible interpretation to rational bible criticism.

3